from the urls-we-dig-up dept

It's been a while since the dotcom boom days when human billboard tattoos were all the rage. Getting a tattoo is usually not considered a prudent decision, but it does attract attention... and that's usually what people are trying to get with tattoos. Maybe tattoo advertising is making a comeback, or maybe it's just as permanent as the ink in people's skin. Just make sure if you're getting a tattoo for money, that you really like your corporate sponsors.

from the ownership-society dept

About a year and a half ago, we wrote what we thought was just a fun theoretical post about copyrights in tattoos. The general point was that if a tattoo artist creates a new and unique design, then, technically, they're the one who gets the copyright. And that can lead to some awkward legal issues. Of course, it barely took three weeks before that "theoretical" question became real, when a tattoo artist who had done Mike Tyson's famous tattoo sued Warner Bros. because the character Ed Helms plays in The Hangover 2 ends up with a similar (though not identical) tattoo. WB eventually settled that case to make it go away.

None of the news reports we've seen have posted the actual legal filing, so we've posted it here and embedded it below. There are a few things worth noting. The game came out in 2010. Escobedo created the tattoo in 2009... but did not register it until February 24, 2012. That may significantly limit Escobedo's ability to collect. Specifically, if you want to ask for statutory damages (up to $150,000), registration has to occur within 3 months of the work being published and prior to infringement. In this case, neither happened -- which is why Escobedo is asking only for "actual damages." And that's going to make this case difficult for him. He's claiming that he wouldn't have licensed the image, which is how he's going to argue for really high damages, but a court might not buy any real or significant "damage" to the copyright being used in the game.

Honestly, much of this feels like the artist is using this more as a way to get publicity, rather than as a way to win a lawsuit. After all, the lawsuit got attention... because the artist issued his own press release about it. That press release mentions the Mike Tyson tattoo case, suggesting that some people saw that and started looking for other opportunities to use tattoo cases to sue big companies, hoping for easy settlements.

Professor Ngahuia Te Awekotuku, author of Mau Moko: The World of Maori Tattoo, described Mr Whitmill's claims of ownership as insufferable arrogance. "It is astounding that a Pakeha tattooist who inscribes an African American's flesh with what he considers to be a Maori design has the gall to claim that design as his intellectual property," she said.

"The tattooist has never consulted with Maori, has never had experience of Maori and originally and obviously stole the design that he put on Tyson.

"The tattooist has an incredible arrogance to assume he has the intellectual right to claim the design form of an indigenous culture that is not his."

That article notes that a local Parliament member said that it was a "bit rich" for Whitmill to be "moaning about the breach of copyright copied off Maori." Seems like bringing in a Maori tattoo expert would make for an interesting witness if this ever actually goes to trial...

from the it-should-be dept

We just wrote about how the judge in the Hangover 2/Mike Tyson tattoo copyright case had said that she wouldn't block the release of the movie, but would let the lawsuit proceed and indicated that the tattoo artist would likely prevail. I thought she just meant on proving the initial infringement, but other reports are saying that pretty clearly mocked Warner Bros.' defenses, including fair use on the tattoo:

Judge Perry briefly discussed the defense's claim of Fair Use, opining that there was no parody or transformative use, the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.

This seems problematic for a bunch of reasons, but one part that troubles me (and we had some of this discussion in our comments) is whether or not the tattoo is parody. Frankly, I can't see how it's not parody. The reason that people claim that it's not transformative or parody is that it's an identical copy and thus isn't parodying the original tattoo. But that seems entirely wrong. While it's the tattoo itself that's copyrighted, you have to look at the context of the tattoo -- and in this case that includes the fact that it's on Mike Tyson's face. Putting it on Ed Helms' character (in many ways the antithesis of Tyson's character) is a clear parody of Tyson and his tattoo. I have trouble seeing how you could argue otherwise. If the point of the tattoo on Helms' face wasn't to parody the same tattoo on Tyson's face, then what's the joke here?

Along those lines, it seems like you could also make the case that it's clearly transformative, in that the original "expression" is the tattoo on Tyson's face. Moving that tattoo -- even if identical -- to Helms' face significantly transforms the tattoo into saying something entirely different. Ignoring the fact that the tattoo goes hand in hand with whose face its on doesn't make any sense at all, and suggests a misreading of the intentions of the fair use setup.

Finally, I have trouble believing the argument that this would somehow negatively impact "the market" for S. Victor Whitmill's "work." Just what is that "market"? How many people want the same tattoo that's on Mike Tyson's face? If anything, it seems like the movie might (if only so slightly) increase the market, rather than diminish it.

The whole case seems like a joke, and the judge's initial comments seem really out of line with the basics of copyright law.

from the fair-use-is-dead dept

About a month ago, we wrote about tattoo artist S. Victor Whitmill suing Warner Bros. for violating his copyright on the tattoo on Mike Tyson's face, since a similar tattoo is used on Ed Helms' face in the movie (Tyson also appears in the movie, but I guess that use is somehow "licensed"). There was some attention paid to the fact that Warner Bros. made a "fair use" claim in its response to the lawsuit, but the entertainment industry regularly claims fair use, so that didn't seem all that odd or surprising. The key early question was whether or not the judge would issue an injunction, halting the release of the movie this week, which would have cost Warner Bros. a ridiculous amount of money considering all of the marketing going into the release.

Thankfully, the judge has denied the request for an injunction, meaning that the movie will still be released. However, she does note that Whitmill has "a strong likelihood of ultimately succeeding on the merits of the case." I find that to be a bit troubling as well, but we'll see how the case goes. Of course, if you accept that fair use is not a right, but just a defense, it is possible to see how Whitmill may succeed in showing infringement, while Warner Bros. could still win with a fair use defense. Still, the whole thing seems pretty ridiculous. If Whitmill still wins, he could receive a large chunk of money in an award and could still get an injunction for future releases (DVD, cable, etc.). Over a parody tattoo.

Of course, there's a clear element of Warner Bros., a leading proponent of stricter copyright enforcement, being hoisted on its own petard, in this case, but it seems unlikely that anyone at Warner Bros. has the self-awareness necessary to recognize that its own constant refrain about the importance of "protecting" copyright is part of what now puts it in this position.

from the well-that-was-quick dept

It really was just a couple of weeks ago that we asked the (we thought) hypothetical question of who owns the copyright on a tattoo, and noted it would be a good question for a law school exam. We did mention one case, but it was settled out of court. Now we may have another. Apparently the artist who designed the tattoo on Mike Tyson's face is suing Warner Bros. and seeking an injunction to block the studio from releasing the upcoming movie The Hangover 2. In that movie, Ed Helms apparently ends up with a tattoo quite similar to Tyson's (Tyson appeared in the first Hangover movie).

The tattoo artist, S. Victor Whitmill, did in fact register the design with the Copyright Office, and even got Mike Tyson to sign a release making it clear that Whitmill retained the copyright on the work. I would think that Warner Bros. has a number of potential defenses here, including parody fair use. It's certainly difficult to claim that this movie in any way diminishes the market for the original tattoo. My guess is that there may be some sort of quick settlement with Warner Bros. paying off Whitmill to make this go away, which is exactly what Whitmill wants. However, if it does go to court, we can see how good all of you were at answering that law school exam question we posited...

from the maybe... dept

Interesting timing. Just after we were discussing the copyright implications of tattoos, jprlk points us to a recent issue of The Straight Dope, in which Cecil Adams takes on the question of the legality of tattooing your favorite sports team logo on your body somewhere. He goes over both the trademark side and the copyright side. There's no trademark issue (in most cases) because there's no "use in commerce," which is required for a trademark infringement situation. There may be a copyright issue, but Adams suggests teams would be crazy to go down that route so it's probably not an issue:

Copyright violation is an easier case to make. (Some contend a fan tattoo would constitute fair use, but I have my doubts.) The main thing is, what team or league would bother? They'd look like bullies, your pockets probably aren't that deep, and it's not like a judge is going to order you to have the tattoo lasered off. Then again, we're talking about professional sports, where conventional logic is out the window.

He's right about that last comment. After all, just look at the Washington Redskins, who have sued fans and threatened bloggers. While he hasn't done it yet, it would not surprise me to see Dan Snyder eventually go so far as to sue a fan for having a Redskins tattoo without paying him for the privilege of promoting the team.

from the and-what-if-you-want-to-change-it dept

My question is this, if a tattoo artist creates a unique design for a client, then this is tattooed on to the aforementioned client, does the tattoo artist still own any intellectual property rights (namely copyright) over this piece of art? If the tattooed subject were to go on to a profession (I can only think of modelling at this precise moment) where the tattoo was constantly broadcast to the general public, and the designer viewed this to be derogatory to their work, would they be able to litigate!"

The 1709 Blog, which posted this question from a reader, also added a separate question:

If the tattooed subject wishes to have the tattoo amended or removed, [does] the tattoo artist [have] any ground upon which to object?

Good stuff for a law school exam, I would think. Of course, plenty of tattoo artwork is actually covered by copyright -- which quite frequently goes ignored. But if we're talking about a unique piece of artwork, and no clear assignment of the copyright is made, there could very well be an issue.

It's worth pointing out, however, that this is not entirely a theoretical issue. Six years ago, we wrote about a tattoo artist suing the NBA, because a professional basketball player he had tattooed, Rasheed Wallace, had shown off the tattoo in a TV commercial, and the artist claimed it was a violation of his copyright. That lawsuit settled out of court, however, so we don't have a legal ruling as specific (that I'm aware of... but if there are other such cases, I'd love to know about them!).